exv10w38



 





Exhibit 10.38


	 	 	 
	

	 	CONFIDENTIAL MATERIAL OMITTED AND FILED
	

	 	SEPARATELY WITH THE SECURITIES AND
	

	 	EXCHANGE COMMISSION.
	

	 	ASTERISKS DENOTE SUCH OMISSIONS.







FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT




          THIS FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”) is
entered into as of August 3, 2004, by and among, on the one hand, the lenders
identified on the signature pages hereof (such lenders, together with their
respective successors and assigns, are referred to hereinafter each
individually as a “Lender” and collectively as the “Lenders”), and WELLS FARGO
FOOTHILL, INC., a California corporation, formerly known as Foothill Capital
Corporation, as administrative agent for the Lenders (“Agent”), and, on the
other hand, GXS HOLDINGS, INC., a Delaware corporation (“Parent”), and GXS
CORPORATION, a Delaware corporation (“Borrower”), with reference to the
following facts:



          WHEREAS, Borrower, Parent, the Lenders, and Agent are party to that
certain Loan and Security Agreement, dated as of March 21, 2003 (as the same
may be amended, restated, supplemented, or otherwise modified from time to
time, including hereby, the “Loan Agreement”), pursuant to which the
Lenders have made certain loans and financial accommodations to Borrower;



          WHEREAS, Borrower has requested certain amendments to the Loan Agreement;



          WHEREAS, the Lender Group has agreed, subject to and in accordance with
the terms and conditions set forth herein, to amend the Loan Agreement.



          NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and upon the terms and conditions
set forth herein, the parties hereby agree as follows:



     SECTION 1. RELATION TO THE LOAN AGREEMENT; DEFINITIONS.



          1.1 Relation to Loan Agreement. This Amendment constitutes an
integral part of the Loan Agreement and shall be deemed to be a Loan Document
for all purposes. Upon the effectiveness of this Amendment, on and after the
date hereof each reference in the Loan Agreement to “this Agreement,”
“hereunder,” “hereof,” or words of like import referring to the Loan Agreement,
and each reference in the other Loan Documents to “the Loan Agreement,”
“thereunder,” “thereof” or words of like import referring to the Loan
Agreement, shall mean and be a reference to the Loan Agreement as amended
hereby.



          1.2 Capitalized Terms. For all purposes of this Amendment,
capitalized terms used herein without definition shall have the meanings
specified in the Loan Agreement.



     SECTION 2. AMENDMENTS TO LOAN AGREEMENT.



          2.1 Amendments to Section 1.1. Section 1.1 of the Loan
Agreement is hereby amended by:



 









 





	 	 	 
	

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     (a) Amending the following definition to read in its entirety as follows:




          “Permitted
[* * *]1 Indebtedness” means (a) Indebtedness in
an aggregate principal amount not in excess of [* * *]2; provided
that (i) such Indebtedness is subordinated to the Obligations; (ii) such
Indebtedness shall not be secured except that not more than [* * *]3 of
such Indebtedness may be secured by a third priority Lien on the
Collateral; (iii) the Borrower shall apply the proceeds of such
Indebtedness to finance (x) [* * *]4 and (y) working capital of Borrower
and its Subsidiaries, (iv) such Indebtedness has a maturity date at least
6 months later than the Maturity Date and (v) such Indebtedness has
covenants substantially no less favorable to Borrower than the Senior
Notes unless otherwise agreed by Agent and (b) any Permitted Refinancing
Indebtedness of such Indebtedness.”



     (b) Amending clause (v) of the definition of “Permitted Liens” to
read in its entirety as follows:




          ”(v) third priority Liens securing no more than [* * *]5 of the
Permitted [* * *]6 Indebtedness so long as the holders of such Liens
execute and deliver to Agent an intercreditor agreement in form and
substance satisfactory to Agent; provided that Agent agrees that
an intercreditor agreement on substantially the same terms as the
Intercreditor Agreement shall be deemed satisfactory to it.”






     1 CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
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     2 CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.



     3 CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.



     4 CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.



     5 CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.



     6 CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.



 









 





	 	 	 
	

	 	CONFIDENTIAL MATERIAL OMITTED AND FILED
	

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	 	EXCHANGE COMMISSION.
	

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     SECTION 3. REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS.



          3.1 Representations.



               Parent and Borrower each hereby represents and warrants to Agent and
Lenders that:



               (a) It has the requisite power and authority to execute and deliver this
Amendment and to perform its obligations hereunder and under the Loan Documents
to which it is a party. The execution, delivery, and performance by it of this
Amendment and the performance by it of each Loan Document to which it is a
party (i) have been duly approved by all necessary action and no other
proceedings are necessary to consummate such transactions; and (ii) are not in
contravention of (A) any law, rule, or regulation, or any order, judgment,
decree, writ, injunction, or award of any arbitrator, court or governmental
authority binding on it, (B) the terms of its organizational documents, or (C)
any provision of any contract or undertaking to which it is a party or by which
any of its properties may be bound or affected;



               (b) This Amendment has been duly executed and delivered by Parent and
Borrower. This Amendment and each Loan Document to which Parent or Borrower is
party are the legal, valid and binding obligation of Parent or Borrower (as
applicable), enforceable against such Person in accordance with its terms, and
is in full force and effect except as such validity and enforceability is
limited by the laws of insolvency and bankruptcy, laws affecting creditors’
rights and principles of equity applicable hereto;



               (c) No injunction, writ, restraining order, or other order of any nature
prohibiting, directly or indirectly, the consummation of the transactions
contemplated herein has been issued and remains in force by any Governmental
Authority against Borrower, any Guarantor or any member of the Lender Group;



               (d) No Default or Event of Default has occurred and is continuing on the
date hereof or as of the date of the effectiveness of this Amendment; and



               (e) The representations and warranties in the Loan Agreement and the other
Loan Documents are true and correct in all material respects on and as of the
date hereof, as though made on such date (except to the extent that such
representations and warranties relate solely to an earlier date).



     SECTION 4. MISCELLANEOUS.



          4.1 Conditions to Effectiveness. The satisfaction of each of the
following shall constitute conditions precedent to the effectiveness of this
Amendment and each and every provision hereof:



               (a) The representations and warranties in the Loan Agreement and the other
Loan Documents shall be true and correct in all respects on and as of the date
hereof, as



 









 





	 	 	 
	

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though made on such date (except to the extent that such
representations and warranties relate solely to an earlier date);




               (b) Agent shall have received the reaffirmation and consent of each
Guarantor attached hereto as Exhibit A, duly executed and delivered by
each Guarantor;



               (c) No Default or Event of Default shall have occurred and be continuing
on the date hereof or as of the date of the effectiveness of this Amendment;
and



               (d) No injunction, writ, restraining order, or other order of any nature
prohibiting, directly or indirectly, the consummation of the transactions
contemplated herein shall have been issued and remain in force by any
Governmental Authority against Borrower, any Guarantor, or the Lender Group.



          4.2 Entire Amendment; Effect of Amendment. This Amendment, and
terms and provisions hereof, constitute the entire agreement among the parties
pertaining to the subject matter hereof and supersedes any and all prior or
contemporaneous amendments relating to the subject matter hereof. Except for
the amendments to the Loan Agreement expressly set forth in Section 2 hereof,
the Loan Agreement and other Loan Documents shall remain unchanged and in full
force and effect. The execution, delivery, and performance of this Amendment
shall not operate as a waiver of or, except as expressly set forth herein, as
an amendment of, any right, power, or remedy of the Lender Group as in effect
prior to the date hereof. The amendments and other agreements set forth herein
are limited to the specifics hereof, shall not apply with respect to any facts
or occurrences other than those on which the same are based, shall not excuse
future non-compliance with the Loan Agreement, and shall not operate as a
consent to any further or other matter, under the Loan Documents. To the
extent any terms or provisions of this Amendment conflict with those of the
Loan Agreement or other Loan Documents, the terms and provisions of this
Amendment shall control. This Amendment is a Loan Document.



          4.3 Counterparts; Telefacsimile. This Amendment may be executed in
any number of counterparts, all of which taken together shall constitute one
and the same instrument and any of the parties hereto may execute this
Amendment by signing any such counterpart. Delivery of an executed counterpart
of this Amendment by telefacsimile shall be equally as effective as delivery of
an original executed counterpart of this Amendment. Any party delivering an
executed counterpart of this Amendment by telefacsimile also shall deliver an
original executed counterpart of this Amendment, but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability,
and binding effect of this Amendment.



          4.4 Fees, Costs and Expenses. Borrower agrees to pay on demand all
reasonable fees, costs and expenses in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-
of-pocket expenses of counsel for the Agent with respect thereto and with
respect to advising the Agent as to their rights and responsibilities hereunder
and thereunder.



 









 





	 	 	 
	

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          4.5 Cross-References. References in this Amendment to any Section
are, unless otherwise specified, to such Section of this Amendment.



          4.6 Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.



          4.7 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD
TO ANY CONFLICT OF LAWS PRINCIPLES.



 









 





	 	 	 
	

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     IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
and delivered as of the date first written above.



	 	 	 	 	 
	 	 	GXS CORPORATION,
	 	 	a Delaware corporation
	 
	 	 	 	 
	

	 	By:
	 	/s/ Gary Greenfield
	

	 	 	 	

	

	 	Title:
	 	Chief Executive Officer
	 
	 	 	 	 
	 	 	GXS HOLDINGS, INC.,
	 	 	a Delaware corporation
	 
	 	 	 	 
	

	 	By:
	 	/s/ Gary Greenfield



	

	 	Name:
	 	Gary Greefield
	

	 	Title:
	 	Chief Executive Officer








 










 





	 	 	 
	

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	 	 	WELLS FARGO FOOTHILL, INC.,

a California corporation, as Agent and as a Lender
	 
	 	 	 	 	 	 
	

	 	By:
	 	/s/ Michael Ackad


	 	 
	 	 	Name: Michael Ackad

Title: VP







 









 






	 	 	 
	

	 	CONFIDENTIAL MATERIAL OMITTED AND
	

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	 	 	CREDIT SUISSE FIRST BOSTON,

CAYMAN ISLANDS BRANCH,

as a Lender
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

	

	 	Title:	 	 
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

	

	 	Title:	 	 







[signature page continues]




 









 








	 	 	 
	

	 	CONFIDENTIAL MATERIAL OMITTED AND
	

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	 	 	ABLECO FINANCE LLC,

a Delaware limited liability company, on behalf of itself and its Affiliate
assigns, as Lenders
	 
	 	 	 	 
	

	 	By:
	 	/s/ Kevin Genda



	

	 	Title:
	 	SVP, Chief Credit Officer







 









 






	 	 	 
	

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	 	 	GOLDENTREE LOAN OPPORTUNITIES I, LIMITED,

as a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By: GoldenTree Asset Management, LP, its general partner
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	By:	 	 	 	 
	

	 	 	 	 	 	
	 	 
	

	 	 	 	Name:	 	 	 	 
	

	 	 	 	Title:	 	 	 	 







 









 






	 	 	 
	

	 	CONFIDENTIAL MATERIAL OMITTED AND
	

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	 	 	GOLDENTREE HIGH YIELD OPPORTUNITIES I, L.P.,

as a Lender	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	GoldenTree Asset Management, LP,

its general partner
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	By:	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	 	 	
	 	 	 	 	 	 
	

	 	 	 	 	 	Name:

Title:
	 	 	 	 	 	 	 	 







 









 






	 	 	 
	

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	 	 	1888 FUND LTD.,

as a Lender	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By: Guggenheim Investment Management, LLC,

       as its Collateral Manager
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	By:	 	 	 	 	 	 
	

	 	 	 	 	 	 	 	
	 	 	 	 
	

	 	 	 	 	 	Name:	 	 	 	 	 	 
	

	 	 	 	 	 	Title:	 	 	 	 	 	 








 










 





	 	 	 
	

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	 	MAGMA CDO LTD.,
	

	 	as a Lender
	 
	 	 
	

	 	By: ____________________________
	

	 	Name:
	

	 	Title:







 









 






	 	 	 
	

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	 	 	CANPARTNERS INVESTMENTS IV, LLC,

A California Limited Liability Company,

as a Lender
	 
	 	 	 	 
	

	 	By:
	 	/s/ Mitchell R. Jalis


	

	 	Name:
	 	Mitchell R. Jalis
	

	 	Title:
	 	Managing Director